Question: “All constitutions pay homage to the basic doctrine of separation of powers and tend to also separate personalities. But even as they do so, there are limits at which you must separate power so the pure doctrine of separation of powers no longer works like Montesquieu envisaged, and instead, scholars have chosen to use the phrase checks and balances… and at the same time recognizing that there is an overlap of these organs of state.
The organs of government are like 3 stones under a pot and
each of the functions to ensure that the food in the pot is effectively cooked
and also that the pot does not fall over” George
Wilson Kanyeihamba JSC in Attorney
General versus General David Tinyefuza, Supreme Court Constitutional Appeal No.
1 of 1997.
In light of the above decision, critically examine the
applicability of the doctrine of separation of powers in Uganda and the system of checks
and balances. (10 marks)
DOCTRINE OF SEPARATION OF POWERS
Separation of powers is a political doctrine of
constitutional law that embarks on the distribution of powers amongst the three organs
of government.
The principle was propounded by French Political Thinker, Montesquieu.
Separation of powers in Uganda is aimed to reduce the effects of abuse of
power, dictatorship, absolutism, and many similar traits that may arise from the dominance
of a certain organ of government.
The doctrine of separation of powers in Uganda's context still
aims to distribute powers amongst the three organs in the framework of
government as follows;
The Executive- the
Executive serves the role to determine implement and also enforce laws of the
country. The executive in Uganda comprises the President, Army, and police.
The Legislature-The
legislature is concerned with the duties of formulating laws and legislation. The
legislature is made up of the Parliament in Uganda which is the law-making
body.
It also includes other delegated sub organs which are
delegated by the Parliament.
The Judiciary-
This organ serves the duty to interpret and administer the laws made by the legislature.
The Judiciary is made up of the Courts of Justice in Uganda;
The Supreme court, The Constitutional Court, The High Court, and other
recognized courts
Under the 1995
Constitution of the Republic of Uganda (as amended), the Separation of powers in Uganda is
illustrated as the constitution clearly establishes each organ separately invariant sections establishing their specific roles and duties i.e.
The Legislature under Chapter
6, the Executive under Chapter 7, and
the Judiciary under Chapter 8
Application of the doctrine of separation of powers in Uganda;
Executive
Article 99(1) vests the Executive power in the hands of the president. It lays down the
duties that the executive is charged with the duty of administering,
implementing, and enforcing government policies.
These duties are to be exclusively executed by the executive
and not any other organ.
Judiciary
Article 128 of
the constitution provides for the independence of the Judiciary. It provides
for how the Judiciary shall not be interfered with by any authority or person.
This indicates that the Courts shall have autonomous powers
while carrying out their activities of ensuring law and justice.
Legislature
Article 79 (1)
vests the power to make laws under the Parliament. This provides that the
Legislature and its delegated subsidiary bodies are the only recognized law-making bodies.
As laid out above each organ is charged with unique duties
in the framework of government.
Furthermore, as a principle of Separation of Powers, no member of one organ can again possess
membership in another organ. I.e. a Judge cannot be a Member of Parliament.
This continues to draw a line on the boundaries among the
organs of government each having specified roles in the government system of
Ugandan. Thus establishing the Separation of powers in Uganda.
The case of Attorney General V Major General David Tinyefunza illustrates the balance of power between the Judiciary
and the Executive.
Retired Justice
Kanyeihamba noted that the courts can only interfere where the acts of the
Executive violate the rights of an individual. This continues to show how the
arms of the Government are not ready to interfere with the activities of the other.
However, the extent to which the Principle of Separation of
powers in Uganda is actualized is minimal.
The doctrine of Separation
of powers cannot be fully realized and hence states have then resorted to a system
of checks and balances which is a more preferred criterion for regulating the
arms of government.
The doctrine of checks and balances in Uganda operates to
create a link for power regulation amongst the three organs of government; Legislature,
Judiciary, and the Executive.
CHECKS AND BALANCES
The principle of checks and balances refers to the duty,
right, and responsibility of an organ of government to check on the activities
of the other in a similar vein with the powers to limit the excesses/absolutism of
the other organ where necessary.
In the case of
Ssemwogerere & Zachary Olum V Attorney General, the Referendum and Other
Provisions Act was nullified because of the failure of Parliament to follow the
requisite procedures.
This shows how unlawful shortcuts, through the Constitution
by the Executive and Legislature are avoided hence emphasizing the Rule of Law.
Although the doctrine of separation of powers in Uganda is
seen to operate it has been highly abused in Uganda as discussed below
Executive to the Judiciary
In the case of Besigye V Museveni. The President exhibited dissatisfaction with the judges that
dissented from the ruling stating that they did not know what they were doing.
This undermines the principle of separation of powers as portrayed
by the Constitution.
Executive to Legislature
Furthermore, the
Constitutional (Amendment) Act 13 of 2000 was also a result of the
executive pressure on the Legislature causing it to disregard the requisite
Procedures: The Constitutional
(Amendment) Act no. 112000 was later nullified by the Supreme Court consequently.
It should be noted that the Executive in Uganda has
consistently overpowered the rest of the other organs as illustrated in the
instances earlier. This violates the independence of the Judiciary which is a
very vital aspect of the Separation of powers in Uganda.
In a nutshell, the validity of the doctrine of separation of powers in Uganda is not fully dependent on the circumstances.
The doctrine of Checks and balances is a rather preferred criterion where the organs act as overseers for each other
activities to avoid instances of absolutism.
Even under clear provisions by the constitution, some organs are seen to largely interfere and overpower the duties of other organs thus failure of the Doctrine of separation of powers in Uganda.
Download Separation of Powers - Coursework as a document below.